High Court Nullifies Edict On Virginia Handicapped

By Jane SeaberryBy Jane SeaberryOctober 4, 1977

The U.S. Supreme Court yesterday nullified a lower court's finding that Virginia violated the constitutional rights of impoverished handicapped students by refusing to paooling when adequate public edcuation was not available.

A three-judge federal court panel in Richmond had ruledthat a state law requiring parents to relinquish custody of their handicapped children to the state when they are unable to pay for private special education violated the poor students' constitutional tight to receive the same education as the handicapped children of weathier parents.

The ruling came in a class action suit filed on behalf of two youths from Fairfax County and one from Henrico County. The state then appealed that decision to the Supreme Court.

Without issuing an opinion, the Supreme Court yesterday voided the three-judge panel's finding and ordered it to decide the issue based on a section of the Federal Rehabilitation Act of 1973 and a Supreme Court abortion case in which the court ruled that women who could not afford abortions were not discriminated against.

However, Section 504 of the Federal Rehabilitation Act states that qualified handicapped individuals cannot be discriminated against in programs receiving federal funding, solely on the basis of their handicap. Virginia's special education programs for handicapped students are partially federally funded.

Department of Health, Education and Welfare regulations adopted this year as part of the act state that handicapped students must be given free education as soon as possible, or at least by next October.

Although the Virginia state government said it considered yesterday's action a victory, American Civil Liberties Union attorney Stephen W. Bricker said, "It is not a victory or a defeat."

Bricker said he expects the lower court judges to rule in the students' favor since they already stated in their earlier opinion that they felt the law also violated the 1973 rehabilitation act.

The Supreme Court did not tell the lower court in whose favor torule. In effect the high court said the state law is not unconstitutional but may violate federal act.

Under the Virginia law, children who live at home and require special education in private schools because of their need or the limitations of public school systems are given partial tuition grants by the state to attend the private schools.

Parents are then required to make up the substantial differences between the state and local government grants dand the actual costs of the private schooling. To receive full funding, parents who cannot afford to pay the full amount must relinquish custody of their children, who then are sent to state facilities.

Partial grants can be as high as $1,250 a year for nonresidential schooling programs and $5,000 for residential programs.

The average cost of nonresidential private programs in Virginia last year was #3,515, while the cost of residential special education averaged $10,145. On the average, parents would have to make up differences ranging from $2,263 to $5,345 a year, according to the Fairfax Legal Aid Society, which helped represent the Fairfax youths in the case.

The law affects all handicapped children, including those withvisual and hearing impairment, physical disabilities, mental retardation or emotional problems. It is estimated that there are between 25,000 and 36,000 such children in the state.

Bricker said that if the three-judge panel does not act quickly in the students' favor their state funding will be cut and the impoverished handicapped students, whose parents cannot afford to supplement state grants, will be forced out of the private schools they are attending. Private schools also might be forced to close for lack of funding, Bricker said.

The state contends it cannot afford to pay for the students' education this year, according to Walter H. Ryland, an assistant state attorney general.

The state Department of Education has allotted $12 million for special education in its budget this year and it would need an additional $13 million to totally fund the handicapped students' education, Ryland said.